S              Smt. RENUKAMBA.C

                Member

1.       The complainant has brought this complaint before the  Commission on the basis of the following facts.

2.     The complainant submits that the JSS Hostel senior students House Building Co-operative Society Ltd is a registered co operative society under the Karnataka Co-operative societies Act with formation of layouts and distribution of sites formed in such layouts being its objectives.

3.       The complainant submits that with a fond hope of owning a residential site her late father Siddappa became the member of the society by paying a sum of Rs. 6,000/- on 24.07.2007. The receipt of which is acknowledged by the opposite party. The opposite party society issued an identity card with share certificate/ledger no being 4/293. In furtherance and realization of his dream of owning a residential plot the late father of the complainant applied for a 40 x 60 feet site in the layout proposed to be developed by the society by paying an advance amount of Rs. 1,50,000/- on 24.07.2017 vide receipt No.2977 the payment of which is being acknowledged by the opposite party. The said factum finds its mention in the pass book issued by the opposite party society.

4.       Again on 28.02.2008 the late father of the complainant paid a sum of Rs. 1,00,000/- vide receipt no.3851 towards the allotment price of the site. The payment of which is acknowledged by the opposite party. Thereafter, again on 02.04.2008 the late father of the complainant paid a sum of Rs.50,000/ vide receipt no 4029 allotment price of the site.

5.       The complainant submits that again on 03.10.2008 the late father of the complainant paid a sum of Rs. 50,000/- vide receipt no.4282 allotment price of the site. The said payment has also been duly acknowledged by the opposite party society. Therefore, the late father of the complainant again paid a sum of Rs. 50,000/- vide receipt no.4312.

6.       Again the late father of the complainant paid a sum of Rs. 2,24,000/- towards the allotment price of the site of the site vide receipt No.6834 on 02.11.2011. Thus, in all the late father of the complainant had paid a sum of Rs. 6,24,000/- towards the allotment price of the site.

7.       The complainant submits that in the meanwhile her father late Siddappa expired on 30.09.2014 after which the complainant paid requisite amount of Rs. 6,000/- and got the share transferred in to her name. The identity card issued in favour of the complainant. The complainant on 19.07.2018 addressed a letter to the opposite party society thereby appraising the facts and expressing her anguish over the delay in allotment of site. The receipt of the said letter has been acknowledged by the opposite party society. It may also be noted that left with no other hopes the complainant requested for refund of the amount paid by her late father till date along with the interest.

8.      The complainant was thus compelled to address one more letter on 05.09.2018 thereby reiterating and reaffirming facts and called upon the opposite party society to refund the amount deposited by her late father towards the allotment of site. After the service of the said letter the opposite party society finally chose to send a reply on 07.09.2018 stating that the requisition made by the complainant was placed before the executive committee meeting of the society held on 06.08.2018 and stated that the site shall be allotted after placing the seniority list to the registrar of the co operative societies. It has been sated that the seniority number of the complainant is 360 and as per the seniority the sites shall be allotted. The father of the late complainant has made substantial investment towards the allotment price of the society.

9.       The complainant hoping against the hopes had kept faith on the empty promises made by the opposite party society, believing the representations made by the opposite party that the sites would be allotted within a reasonable time the late father of the complainant had so far paid a sum of Rs. 6,24,000/- towards the allotment of site. But, the opposite party has failed to keep up the said solemn promise. Thus, compelling, the complainant to file this complaint.

10.       The complainant has been punctual in payment of installments as called by the opposite party amounts to deficiency in service as defined under section 2 (1) (g) of the Consumer Protection Act.

11.      The complainant submits that the cause of action for the complaint arose on 24.07.2007 the date on which subscription charge was paid by the late father of the complainant and on all subsequent dates of payment made by the late farther  of the society and as on the date of transfer of membership in favour of the complainant herein. Subsequently as on the date of issuance of letters dated 19.07.2018, 05.09.2018 and 07.09.2018 the date on which the reply has been issued by the opposite party society within the territorial and pecuniary jurisdiction of this Hon’ble District Forum.

12.       The complainant is a consumer within the meaning and definition of Section 2(b) of the Consumer Protection Act of 1986 and the dispute raised is a consumer dispute. the opposite party is service provider and the promise to provide the site is a service defined under the consumer protection Act of 1986. The opposite party is guilty of deficiency in service as defined under the Consumer Protection Act. The complaint has been filed within limitation wherefore, the complainant humbly prays before this Honourable Forum that in the interest of justice and equity the Hon’ble Forum be pleased to pass an order directing the opposite party to refund the entire amount of Rs. 6,24,000/-paid by the complainant till date. Pay interest at the rate of 18% pa on the consideration paid so far till date of realization. Pay Rs. 25,000/- as compensation for deficiency in service and pay damages of Rs.25,000/- mental agony and towards legal expenses grant such other relief as are necessary in the circumstances of the case, hence this complaint.

13.       The opposite party in the version has contended that the complainant father was not at all a old student of the opposite party society. Hence neither complainant father nor the complainant entitle to claim any relief much less the alleged relief claimed in the petition. There was no deficiency of service of the society to file the present petition by the complainant. Even otherwise if the site was not allotted to the complainant’s father nor to the complainant that is not a deficiency of service. Hence this Hon’ble Forum had no jurisdiction to entertain a complaint. Further the term deficiency is also defined under section 2(1)(g) of the CP Act. This has been clearly held in (2015) I SCC (Civil) 405 by the Hon’ble Supreme Court of India. The opposite party is not disputed the alleged payment made by the complainant and her father. It is true that, complainant alone gave a petition to the opposite party society, claiming exclusive right in respect of a site. For which the opposite party society concerned officials directed the complainant to obtain registered release deed in her favour from other family members in order to claim exclusive right over the site and also directed her to produce NOC with other documents. But the complainant not at all complied the above said lawful demands.

14.      The further allegation in order to claim site on the seniority basis only and her seniority number is 360, and hence directed her to comply the above said legal requirements and wait for claiming seniority basis. But instead of doing the same rushed this Hon’ble court claiming refund of alleged amount of Rs.6,24,000/-. Since that amount not belongs to her she is not entitle to claim that amount also. The complainant herself admitted that, 11 years has been passed and hence alleged claim is completely barred by limitation. The allegation made in para 11 is also not true and correct. The alleged cause of action for complaint arose on 24.07.2007 is also not true and correct. The allegation made in para 12of the complaint that she is a consumer with the meaning and definition of section 2(b) of the CP Act is not correct. And alleged dispute is not a dispute raised in a consumer dispute. The opposite party is not a service provider and promise to provide the site is a service under CP Act. The opposite party was not a guilty of deficiency in service has defined under CP Act.

15.       The complainant not entitle to claim any relief muchless the alleged relief of Rs. 6,24,000/- with 18% interest on the consideration paid till payment and further she is not entitle to claim Rs.25,000/- as compensation towards deficiency in service and another sum of Rs. 25,000/- towards mental etc, On the other hand that grounds and claim are imaginary ground. There was no such contract or agreement whatsoever by and between the parties. Even otherwise as per the Rules of opposite party society , those who claim refund amount instead of site then the society got right to forfeit 25% of the amount paid by the members. This was also brought to the notice of the complainant. Wherefore the opposite party humbly prays this Hon’ble Forum be pleased to dismiss the petition with cost and grant such other appropriate reliefs, in the interest of justice and equity.

16.       The complainant filed her affidavit evidence with several documents marked as exhibits P1 to P6. and the written arguments and addressed oral arguments. Opposite party filed his affidavit evidence and document marked as exhibits R1. and the written arguments and addressed oral arguments. Hence the matter posted for orders

17.      The points that would arise for our consideration are as under:

1. Whether the complainant has proved that there is a deficiency in service on the part of opposite party and complainant is entitled to the reliefs sought?

2. What order?

18.     Our findings on the aforesaid points are as follows:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order for the following

:: R E A S O N S ::

19.     Point No.1:- The father of complainant had been member JSS Hostel senior students House Building Co-Operative Society limited since 24.07.2007 and had applied for a site in the said society, on 02.08.2007 the complainant’s father had obtained an ID Card from the society bearing share katha/ledger no.4/CM293, after his demise his daughter, the complainant got the membership transferred in her name on 10.07.2017 with ID card bearing No.LF No.CM 39. The complainant’s father had paid Rs. 6,24,000/- these facts are admitted as true  and correct by the opposite party.

20.     Opposite party denies the allegations made by the complainant under section 2(1)(g) of CP Act, i.e., deficiency in service. In support of his contention opposite party has furnished citation related to deficiency in service as below:-

“ (2015) 1SCC(Civil)405 , in this case , Section 2(1)(g) of CP Act related to deficiency in service has been explained and also section 11 of CP Act. Where consumer complaint, maintainability where a sale of plot of land simplicities is concerned and if there is any complaint same would not be covered under, CP Act but as far as housing construction by sale of flats by builders are societies his concerned, that would be on a different footing”.

21.     The above citation quoted by the opposite party is not applicable to this instant case, because, in the citation quoted the contention raised is about sale of plot of land simpliciter  not falls under jurisdiction of CP Act or within the jurisdiction of District  Consumer Forum, State Consumer Commission having no jurisdiction to try such cases. But, in the opposite party’s case, the issue is delay in allotment of site. Therefore, the citation quoted by opposite party is not applicable to this complaint.

22.      Further, the complainant has submitted the case law 2019(5)SCC 725, in support of her complaint, which states that according to CP Act 1986, section 2(1)(g), section 2(1)(o) and section 23 Haryana real estate ( Regulation and development ) Rules, 2017 Rule 15, “if builder fails to apply for occupancy certificate as per stipulations of apartment buyers agreements or if delay in handing over possession of flat to buyer as per agreement, which amounts to deficiency in service and the purchaser is entitle to seek refund of amount deposited by him with interest at 10.7% SI p.a and a  compensation”.

23.     The above citation quoted by the complainant also speaks about ‘Right of cancellation of site allotted by the allottee.’ It says that allottee has the right to cancel the agreement in such case , the allottee shall be entitled  to seek refund of installments actually paid along with interest thereon  at 6%p.a within period of 90 days from the date of communication to developer.

24.      On going through the above citation quoted , it clear that it holds good for this complaint , hence the case law/citation referred by complainant is applicable to this case. Therefore the opposite party has to refund the installments paid by the complainant’s father as requested by the complainant. The opposite party society has passed resolution in which they have agreed to allot site to the complainant. Therefore, the complainant requesting for the refund of installment amount instead of site allotment is maintainable and  there is nothing wrong in is Opposite party have also said that her seniority no is 360 and till date sites have been allotted up to seniority no.299 and opposite party has asked complainant to wait for her seniority which shows inordinate delay in allotment. And further, opposite party have asked the complainant to submit NOC and registered release deed in her favour from other family members in order to claim exclusive right over the site, but the same was not insisted from the complainant by the opposite party during transfer of shares from her father’s name to her name  nor while she paid Rs. 6,000/- for transfer, now when the complainant has requested for refund of installment, the opposite party is asking NOC and other documents, which proves that opposite party is making the complainant to wait indefinitely. Hence, as agreed by opposite party there is delay in allotment of site to the complainant which amounts to deficiency in service on the part of opposite party, Hence, the complainant is entitled for the reliefs sought. Therefore, point no.1 is answered partly in affirmative.

25.    Point no.2:- In view of the above observations, we proceed to pass the following.

:: ORDER ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to refund the entire amount of Rs.6,24,000/-to the complainant with interest at the rate of 11% pa from 02.11.2011 the date on which last payment was made till date of realization.
3. The opposite party is liable to pay Rs.20,000/-as compensation for deficiency in service.

4. Opposite party is directed to pay Rs. 20,000/- to the complainants towards mental agony and Rs. 5,000/-towards cost of the proceedings to the complainants.

5. Furnish the copy of order to both parties at free of cost.